ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[June 25, 2013]
JUSTICE UPPITY NEGRO, concurring

In a nutshell, the Court has ruled that this Section 4 of the Voting Rights Act that allowed for a formula to declare what states and other jurisdictions must therefore meet a “pre clearance” mandate of the Department of Justice (as outlined in Section 5) to make any changes to the voting law, under the current conditions and the current formula as set forth by Congress which renewed the Voting Rights Act in 2006, is unconstitutional. The ruled it unconstitutional on the basis that it is not equality under the law from the 14th Amendment and that it wreaks of a misuse of federal powers over that of the state.

The removal of this provision in Section 4 will allow states to pass laws that can unfairly result in the disenfranchisement of voters. To redistricting (better known as gerrymandering), to creating the situation where long lines exist on voting day or any number of scenarios that can disenfranchise voters and make it harder for them to make their one vote, one voice count. Under the provision, any time a law was to be changed in one of the covered southern states, it had to get approval from the U.S. Department of Justice. Because that Section 4 provision was invalidated by the Court, no longer will states have to get that stamp of approval in the same manner and for me, it calls into question the subsequent validity of Section 5.

The Court seemed to be relying on the Fifteenth Amendment which guaranteed free black men the right to vote as enough law to knock down whatever racial discrimination may arise. The Court’s opinion fully supported what was done in the past and said that it was necessary in 1965 and even in the years following. However, they said that based on current voter registration numbers in these southern states that the current formula for which pre clearance must be obtained is no longer needed as outlined in Sections 4 & 5. Aside from the fact that I actually read the indepth opinion of the Court, I picked up what seemed to be rather rational reasoning behind it. What stuck out tome were the following written by Chief Justice John Roberts:

The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The amendment is not designed to punish for the past; its purpose is to ensure a better future.

To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past.

Striking down an Act of Congress “is the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J.,
concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no
choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.

Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U. S., at 500–501. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the
legislation it passes to remedy that problem speaks to current conditions. The judgment of the Court of Appeals is reversed.

It is so ordered.

Oddly enough to me that makes rational and legal sense.

Then Justice Clarence Thomas, the one who I believe to be accidentally black, had to be a lone wolf and add a separate concurring opinion, as if the singular one wasn’t enough. I feel that what he had to offer was superflous in every way possible. It was this effusive gushing that was unnecessary and it did nothing more than entrench the “Uncle Tom” image that he so gloriously seems to bathe in daily. What he had to offer was repetitive and offered no new insight on the matter, actually seeking to go further with the clear invalidation of Section 5 as well. Rather than offering a deeper look into the rationale, he bogged himself deeper in the myopia that he usually offers an opinion with, so much so to the point of eliciting emetic responses from the masses of blacks and Latinos in this country.

In spite of these improvements, however, Congress increased the already significant burdens of §5. Following its reenactment in 2006, the Voting Rights Act was amended to “prohibit more conduct than before.” Ante, at 5. “Section 5 now forbids voting changes with ‘any discriminatory purpose’ as well as voting changes that diminish the ability of citizens, on account of race, color, or language minority status, ‘to elect their preferred candidates of choice.’” Ante, at 6. While the pre-2006 version of the Act went well beyond protection guaranteed under the Constitution, see Reno v. Bossier Parish School Bd., 520 U. S. 471, 480–482 (1997), it now goes even further.

The dissenting opinion, authored by Justice Ruth Bader Ginsburg said:

Second-generation barriers come in various forms. One of the blockages is racial gerrymandering, the redrawing of legislative districts in an “effort to segregate the races for purposes of voting.” Id., at 642. Another is adoption of a system of at-large voting in lieu of district-by-district voting in a city with a sizable black minority. By switch­ing to at-large voting, the overall majority could control the election of each city council member, effectively elimi­nating the potency of the minority’s votes. Grofman & Davidson, The Effect of Municipal Election Structure on Black Representation in Eight Southern States, in

Quiet Revolution in the South 301, 319 (C. Davidson & B. Grofman eds. 1994) (hereinafter Quiet Revolution). A similar effect could be achieved if the city engaged in discriminatory annexation by incorporating majority­ white areas into city limits, thereby decreasing the effect of VRA-occasioned increases in black voting. Whatever the device employed, this Court has long recognized that vote dilution, when adopted with a discriminatory pur­pose, cuts down the right to vote as certainly as denial of access to the ballot. Shaw, 509 U. S., at 640–641; Allen v. State Bd. of Elections, 393 U. S. 544, 569 (1969); Reynolds v. Sims, 377 U. S. 533, 555 (1964).

See also H. R. Rep. No. 109–478, p. 6 (2006) (although “[d]iscrimination today is more subtle than the visible methods used in 1965,” “the effect and results are the same, namely a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their preferred candidates”).

In summary, Ginsburg asked the question in her dissent as to whether or not this Section 5 was actually doing what it was supposed to do. Their summary found that “On that score, the record before Congress was huge. In fact, Congress found there were more DOJ objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization (490).”

All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory. H. R. Rep. No. 109–478, at 21. Congress found that the majority of DOJ objections included findings of discriminatory intent, see 679 F. 3d, at 867, and that the changes blocked by preclearance were “calculated decisions to keep minority voters from fully participating in the political process.

The number of discriminatory changes blocked or de­terred by the preclearance requirement suggests that the state of voting rights in the covered jurisdictions would have been significantly different absent this remedy. Sur­veying the type of changes stopped by the preclearance procedure conveys a sense of the extent to which §5 con­tinues to protect minority voting rights.”

UNITED STATES – CIRCA 1965: Participants, some carrying American flags, marching in the civil rights march from Selma to Montgomery, Alabama in 1965 (Photo by Buyenlarge/Getty Images)

Among their findings, they discovered in 1995 that the state of Mississippi attempted to resurrect an 1892 dual voting law meant to disenfranchise black voters, stopped by Section 5; 2000 redistricting plan of Albany, Georgia that would have disenfranchised black voters; in 2001, the all white mayor and city council of Kilmichael, Mississippi canceled an election when an unprecedented number of blacks sought office; 2006 in Texas when redistricting would disenfranchise Latino voters; “In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, pro­posed an at-large voting mechanism for the board, found to be an “‘exact replica’” of an earlier voting scheme that, a federal court had determined violated the VRA…

…the list goes on.

Ginsburg’s closing paragraph is:

That determination of the body empowered to
enforce the Civil War Amendments “by appropriate legis­
lation” merits this Court’s utmost respect. In my judg­
ment, the Court errs egregiously by overriding Congress’
decision.

The reason why I, as a tenth judge, choose to stand somewhere in the middle is but for one reason: hope. Legally, and under the letter of the law, I side with the opinion of the court. Under the law, I agree it’s unconstitutional. And usually for most, that’s enough to settle the argument and it usually is for me as well. The Court’s opinion raises a fair question about holding states responsible for their past. And the hope for me is what does ultimate reconciliation look like? Does there come a day when we can actually trust one another to do the right thing regardless?

Yes, my hope still lies in that day, but that day isn’t today. Nor is it tomorrow either. I truly didn’t think I’d be a young man and see the election of a black man to the presidency, but my country proved me wrong. Things can get better. But I think asking this question is akin to asking “Are we post racial yet?” to which most non whites answer with a resounding no. Talking to a friend who drove down from Atlanta this past weekend to preach in Baton Rouge, he told me he got pulled over by the staties in Alabama on a “routine traffic stop.” They asked to search the car and he said no, and he had to wait for a second car to arrive along with search dogs. They asked him where he was headed, he said to preach and they asked him to produce licensing papers–as if this was apartheid South Africa and pass papers were to be carried at all times or the antebellum South and freedom papers were required.

The typical liberal and conservative approach to social life here in the United States is evidenced here in Court’s opinion and the dissenting opinion as well. Oddly enough, it reminds me of the Reconstruction Era in the U.S. as well with the progressives calling for reparations and penalties to be levied against the treasonous, rebellious and ceded states before welcoming them back into the Union where essentially they just got a slap on the wrist. While it may not be ethically right to hold current people liable for the sins of their parents, the “second generation barriers” Ginsburg writes about are real and serious and are committed by people alive today.

My problem with the conservative thinkers of America is that they operate as though this is a post-racial time and relegate the examples that Ginsburg listed as anomalies rather than the lived reality of the people of Kilmichael or Albany. I want to know how can one so easily turn a blind eye to the injustices that exist for the hope of a tomorrow that has shown no evidence of materialising given the current “formula.”

Let me be clear, I think some of the language about the Voting Rights Act being “gutted” is a bit hyperbole. Based on the Court’s opinion, they are open to Congress revisiting the issue and coming up with a new formula on how to protect the voting rights of non-whites. However, as we know, that will indeed be a very difficult for a highly partisan Congress and one that can’t even meet it’s on basic budget requirements. What this will do is result in a lot of individual cases being brought to state and federal courts on the other statues in the Voting Rights Act and many challenges to that favored 14th Amendment.

In no way do I feel that the work of our ancestors has somehow been magnanimously been terminated with this. Part of the reason I say this is because this Section 4 and subsequently 5 only accounted for states in the South, mostly, and does nothing for the rest. With the likes of Arizona challenging voter ID laws and even states like Wisconsin levying tougher laws surrounding the act of voting, this fight goes far beyond Section 4 & 5 of the Voting Rights Act of 1965.

Kudos to Eric Holder for taking on this case and doing a helluva lot more in the area of civil rights in this country than whatever got accomplished under the Bush administration.

The tintinnabulation of the Court’s opinion isn’t a death knell, but rather sounding a wake up call for us to continue the fight for equality across the country.

4 thoughts on “The Tenth Justice Report: An Uppity Review of the Supreme Court’s Decision on the Voting Rights Act”

They’re saying that it constitutes “extraordinary departure from the traditional course of relations between the States and the Federal Government.”

Might not agree with that answer, but that’s their reasoning. I don’t think it constitutes an extraordinary departure, but if you’re logic sees it that way, I am in favor of states’ rights–up to a point. But this is the Democratic socialism coming out in me. I believe certain rights should be mandated by the federal government and not left up to the popular vote and to the states; voting rights are one of them.

That’s because they conveniently glossed over the fact that whenever the Supreme Court invalidates an act of congress, it is supposed to, at a minimum, apply the “Rational Basis” test. The Rational Basis test says that any act of Congress is presumed to be constitutional unless the law is not rationally related to its stated goal. To say that Section 4 is not even rationally related to the goal of preventing voter discrimination is beyond a stretch.

Beyond that, it’s not the job of the Court to legislate. If a formula is outdated, then it’s Congress’ job, not the Supreme Court, to declare that it is outdated.

The ruled it unconstitutional on the basis that it is not equality under the law from the 14th Amendment and that it wreaks of a misuse of federal powers over that of the state.

Not to get highly technical, but they actually didn’t use the 14th Amendment to knock this one down. It’s a bit of a mystery what actually provision in the Constitution Roberts chose to knock it down. He seems to have used an amalgamation of State’s Rights (10th Amendment) combined with the Rational Basis test. Although, he sort of glossed over the Rational Basis discussion and just said “hey man, we’re living in a html-5 kind of world and this Section 4 formula is running on Windows 2.0”

To be sure, Roberts has always had my respect as an intellectual powerhouse. Many people say that Scalia is the intellectual powerhouse on the Court but Scalia is transparent. He tips his hand and lets his inner-racist show in his opinions. Roberts has mastered the art (and it truly is an art) of ruling against minority interests without being an asshole about it. He always uses sound reasoning which leaves you nodding your head like “hmmm….you know I can’t really argue with that.” That is the desired effect of a true wordsmith. I rarely agree with the end result that Roberts arrives at, but his logic is difficult to argue with.

Scalia and Thomas, on the other hand, are transparent in their motives and their opinions border on the absurd.

But don’t get it twisted – ALL OF THEM believe that we are living in a post-racial world now. That is why I can’t agree with this opinion on the VRA b/c it is rooted in a fundamental misunderstanding about where we are as a society. As you pointed out, most non-whites can easily tell you in 2 seconds that we are nowhere close to living in a post-racial society. Whites like Roberts, Scalia and Alito (and Clarence Thomas even though he is biologically Black) cannot relate to that reality.